DAVE, J.—This reference comes on the report of the Sessions Judge, Kotah, dated 4th December, 1952.

2. The facts leading to the reference are that on the 20th of June, 1952, Kalyanlal accused was playing a motor bus No. RJG. 74 from Bundi to Kotah. He was checked by a traffic constable, Tika Ram. On investigation it was found that he was making a second trip in contravention of the conditions of the permit, whereby only one transport motor bus could make on trip from Bundi to Kotah and vice versa during the course of one day. The accused was challenged in the court of the City Magistrate, who transferred the case to the Additional City Magistrate. The accused admitted all the facts alleged by the prosecution, and the trial court thereupon convicted him under sec. 123 of the Motor Vehicles Act and sentenced him to pay a fine of Rs. 50/-.

3. The applicant filed a revision application before the Sessions Judge, Kotah. There it was urged by his advocate that the trial court was not justified in convicting the applicant under sec. 123 of the Motor Vehicles Act because that [section was meant for punishing the contravention of the provisions of sec. 42(1) of that Act, and sec. 42(1) of that Act imposed the duty only on the owner of a transport vehicle. It was argued that the owner of the vehicle alone could be punished under sec. 123 for the contravention of the provisions of sec. 42(1), therefore, the applicants conviction was illegal. This argument has found favour with the learned Sessions Judge, because it was supported by a ruling of the Allahabad High Court in the case of Jagroop and another vs. Rex (1).

4. The applicant has not put in his appearance in this court inspite of notice.

5. I have carefully gone into the case of Jagroop and another vs. Rex (1) (AIR 1952 All., 276.), relied upon by the learned Sessions Judge. It was a case of non-issue of tickets, and the driver and conductor were convicted by the trial court under sec. 123. The matter was taken to the High Court in revision. It was observed by the learned Judge that—

"It is the owner and nobody else, such as the driver or conductor, who is forbidden to use or permit the use of a vehicle, save in accordance with the conditions of the permit and consequently if a transport vehicle is used against the conditions of the permit, only the owner and nobody else can be guilty of contravening this provision. If it is prohibited from doing an act and the act is done, no matter by whomsoever it is done, only if at all, can be said to have committed a breach of the prohibition and nobody else, not even the actual door of the act."

6. It would be proper to reproduce the language of sec. 42(1) and 123(1) of the Indian Motor Vehicles Act before entering into the argument:—

"42(1). No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or Provincial Transport Authority authorising the use of the vehicle in that place in which the vehicle is being used :

123(1). Whoever drives a motor vehicle or causes or allows a motor vehicle to be used or lets out a motor vehicle for use in contravention of the provisions of sub-sec. (1) of sec. 42 shall be punishable for a first offence with fine which may extend to five hundred rupees, and for a subsequent offence if committed within three years of the commission of a previous similar offence with a fine which shall not be less than one hundred rupees and may extend to one thousand rupees."

7. It is no doubt true that sec. 42(1) imposes the duty only on the owner of a transport vehicle, but it would appear from the language of sec. 123(1) that it is much wider in its scope than sec. 42(1), as it imposes a penalty not only on the owner but also on a person who drives a motor vehicle or causes or allows a motor vehicle or to be used or lets out for use in contravention of the provisions of sub-sec. (1) of sec. 42. To my mind,

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